Chanked (Migration)

[2022] AATA 534

Chanked (Migration) [2022] AATA 534 (22 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Papasara Chanked

CASE NUMBER:  1827983

HOME AFFAIRS REFERENCE(S):          CLF2017/58946

MEMBER:Justine Clarke

DATE:22 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 22 February 2022 at 4:56pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 24 years – dependent child of an Australian relative – gap in full-time studies – reasonable time – family responsibilities – applicant in full-time work – brief period of the unlawful residence – request for Ministerial Intervention – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 802.214, 802.221; r 1.03

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 11 September 2018 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (the Act).

2. On 17 August 2017, the applicant applied for the visa.[1] The applicant is a national of Thailand. The evidence before the Tribunal is sufficient to satisfy the Tribunal that, at the time of application, the applicant was 24 years of age[2] and that, at the time of this decision, she is 29 years of age.

   [1] At the hearings, the representative informed the Tribunal that the applicant had not been assisted by a professional adviser such as a migration agent; rather, the applicant’s step-father had assisted her to make the application.

   [2] The representative submitted that, at the time of application, the applicant was 24 years, 11 months and 16 days in age—not 25 years as stated by the delegate in the refusal decision. The Tribunal finds that the delegate was incorrect in making the statement about the applicant’s age at the time of application.

3. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

4. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, cl 802.226A), the criteria to be met in this case include cl 802.214.

5. Clause 802.214 provides:

   (1)  If the applicant has turned 18:

   (a)the applicant:

   (i)is not engaged to be married; and

   (ii)does not have a spouse or de facto partner; and

   (iii)has never had a spouse or de facto partner; and

   (b)the applicant is not engaged in full-time work; and

   (c)subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

   (2)  Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

6. The expression ‘dependent child’ is defined in reg 1.03. A dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’ is as follows.

   dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

   …

   (b)       has turned 18 and:

   …

   (ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

7. The applicant provided the Tribunal with a copy of the delegate’s refusal decision. The delegate was satisfied that the applicant met the criteria in cl 802.214(1)(a) and (b). However, the delegate was not satisfied that cl 802.214(1)(c) was met and refused to grant the visa on this basis. The delegate explained:

   In the applicant’s case, she completed secondary studies on 21 July 2012 and commenced post-secondary studies in July 2012. The applicant ceased post-secondary studies in July 2016 and did not recommence full-time study until August 2017 in Australia. Therefore, the applicant had a one year break in full-time studies after commencing post-secondary studies.

   During the one year break the applicant claims she was caring for her ill grandmother and not in full-time study.

   As the term ‘reasonable time’ only refers to the break between completing the equivalent of year 12 in Australia and commencing post-secondary studies, and the break in studies occurred after the applicant completed post-secondary studies, we do not need to consider if this period is a ‘reasonable time’.

   Based on the information provided, I am not satisfied the applicant has demonstrated she has been in continuous full-time study since turning 18 years of age. The applicant has declared she was caring for her grandmother after completing post-secondary studies and only enrolled in a short English course once arriving in Australia. The applicant has not provided evidence of enrolment in a course of study leading to a professional, trade or vocational qualification.

   The applicant is therefore deemed to have had an approximate two year gap in full-time studies. Under Policy, this break in studies is not taken to be a reasonable period break and therefore the applicant has not demonstrated she has been continuously in full-time study since turning 18 years of age. As a result I am not satisfied the applicant meets sub-clause 802.214(1)(c).

   I also considered clause 802.214(2), which states the study clause will not apply for those applicants over the age of 18 who are dependent due to being incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. As the applicant has not provided any evidence of incapacity, I am satisfied the applicant does not meet clause 802.214(2).    

8. On 24 September 2018, the applicant applied to the Tribunal for review of the refusal decision. The applicant was represented in relation to the review by her registered migration agent.

9. On 10 November 2021, the applicant appeared before the Tribunal to give evidence and present arguments. As the applicant is located in Hobart, Tasmania and the presiding Member is based in Melbourne, Victoria, the hearing was conducted by video. While the applicant gave some oral evidence at this hearing, the Tribunal observed that the applicant had difficulty understanding some questions and the Tribunal determined that it should adjourn the hearing to another date when a professional interpreter in the Thai and English languages would be available to assist with communication.  

10. On 28 January 2021, the applicant appeared, again by video, before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

11. The applicant’s mother Ms Namthip Ransley attended both hearings and gave oral evidence at the second hearing. The representative, who was acting pro bono, also attended both hearings. Ms Ransley attended the first hearing by telephone and the second hearing by video from the same location as the applicant. On both occasions, the representative attended by video from the same location as the applicant.

12. In the latter part of the second hearing, the representative stated that the review applicant requested that the matter be referred to the Minister for his intervention. The representative requested time to file post-hearing information related to the request and the Tribunal granted the review applicant until 18 February 2022 to file the material.

13. On 4 February 2022, the applicant submitted copies of:

    ·a signed letter from Senator Carol Brown (Senator for Tasmania) to the Minister for Immigration dated 2 February 2022; and

    ·a signed letter from Senator the Hon Eric Abetz (Senator for Tasmania) to the Minister for Immigration dated 3 February 2022. 

14. On 9 February 2022, an officer of Tribunal spoke to the representative by telephone. The representative confirmed that he and his client were not intending to file any further material and that the Tribunal need not wait until after 18 February 2022 to make its decision.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The main issue in this case is whether, at the time of application on 17 August 2017, the applicant met cl 802.214, particularly cl 802.214(1)(c) or (2). In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 802.221(2)(b) as well. This requires that, at the time of decision, the applicant continues to satisfy the criterion in cl 802.214. At the second hearing, the Tribunal explained its reasons for considering that it should make findings about this time of decision criterion.

    The applicant’s migration history

17. The applicant’s movement records, a copy of which is on the Tribunal’s file, record her migration history as follows:

    ·    1 December 2016: The applicant is granted a Subclass 600 Visitor visa with multiple entries permitted and with conditions 8101 and 8201 (mandatory).

    ·    16 December 2016: The applicant enters Australia as the holder of the Visitor visa.

    ·    6 March 2017: The applicant departs Australia.

    ·    5 May 2017: The applicant re-enters Australia as the holder of the Visitor visa.

    ·    5 August 2017: The applicant’s Visitor visa ceases.

    ·    17 August 2017: The applicant applies for the Child (Residence) (Class BT) visa and is granted a Bridging C visa with condition 8101 (discretionary).

    ·    1 March 2019: The Bridging C visa ceased, and the applicant is granted another Bridging C visa with condition 8101 (discretionary).

    ·    15 April 2019: The second Bridging C visa ceased, and the applicant is granted another Bridging C visa with no conditions.

18. At both hearings, the representative explained the circumstances in which the applicant had been granted a Bridging C visa without the condition 8101 (no work) attached.

    Criteria for applicants over 18

19. If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 802.214. As has been explained above, these requirements must continue to be met at the time of decision: cl 802.221(2)(b).

    Relationship status and history

20. At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 802.214(1)(a). This must continue to be the case at the time of this decision: cl 802.221(2)(b).

21. At the first hearing, the applicant gave credible oral evidence that she did not have a spouse or de facto partner and that she was not engaged to be married. When asked, she told the Tribunal that she had never had a de facto partner or been married. In her words, ‘I’m single’.

22. At the second hearing, the Tribunal asked the applicant whether there had been any change in this respect, and she said that there had not.

23. The Tribunal accepts the applicant’s oral evidence in this respect, noting that there is no information or evidence before the Tribunal to the contrary. Accordingly, the Tribunal finds that, at the time of application on 17 August 2017, the applicant met cl 802.214(1)(a) and that, at the time of this decision, the provision continues to be met.

    Not engaged in full-time work

24. At the time of application, the applicant must not be engaged in full-time work: cl 802.214(1)(b). This must continue to be the case at the time of this decision: cl 802.221(2)(b).

25. At the first hearing, when the Tribunal asked the applicant whether, at the time of application on 17 August 2017, she had been engaged in full-time work, she gave credible oral evidence that she had not. Again, the Tribunal accepts the applicant’s oral evidence in this respect.

26. At the second hearing, the applicant gave oral evidence that, at present, she is working full time at RACT Hotel, Hobart.  She said that she had started working there on 1 May 2019, which the Tribunal notes is after she had been granted a Bridging C visa with no conditions attached.

27. At this point of the hearing, the Tribunal noted that it considered that, because the applicant is engaged in full-time work, it would be unable to make a decision favourable to the applicant because she could not meet this aspect of the requirement in cl 802.221(2)(b).

28. The Tribunal finds that, at the time of application, cl 802.214(1)(b) was met. However, at the time of decision, it does not continue to be met.

    Full-time study (or incapacitated for work)

29. At the time of application, the applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl 802.214(1)(c). This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 802.214(2).

30. As the requirements in cl 802.214(1)(c) are ‘subject to subclause (2)’, if the applicant is claiming to meet subclause (2), then there is no need for her to meet the requirements in cl 802.214(1)(c). The applicant does not appear to be claiming that she meets this provision. For example, she has not provided any evidence of incapacity. In the circumstances, the Tribunal is satisfied that the applicant does not meet clause 802.214(2).

31. Where cl 802.214(1)(c) applies, it must continue to be met at the time of decision: cl 802.221(2)(b).

32. At the first hearing, the applicant gave credible oral evidence that she had completed her secondary schooling in Thailand. The Tribunal asked her whether she had completed the full program of secondary schooling in Thailand. The applicant appeared confused by this question and the representative assisted by clarifying that the Member was asking about the time before she went to university. She replied that she had. The representative also referred the Tribunal to a document he had submitted to the Tribunal with a ‘step by step’ chronology about relevant matters which may assist the Tribunal .

33. The applicant also gave credible oral evidence that, after finishing her secondary schooling, from 2012 to 2016, she had undertaken four years of study at university, studying the tourism industry.

34. She said that, after the university course had finished, she had had to get a job and help care for her grandmother. She said that she had worked as a barista in a coffee shop. She said that she had not worked every day and that it was not full-time work.

35. She said that, after one to two years, she had called her mother and said that she wanted to come to Australia and that her mother had encouraged her to apply for a visa. She said that she had been granted a Tourist visa. She said that, later, she had asked her mother whether she could apply for another visa so that she could live and work in Australia and help her mother and also send money to her grandmother. She also gave some oral evidence about the paperwork needed for the application for the Child visa, given her age.

36. At this point in the first hearing, the representative stated that he believed that the applicant was trying to explain that she was genuinely trying to comply with the requirements of this particular visa, in so far as she made enquiries with RGIT (Royal Gurkhas Institute of Technology) and enrolled in an ELICOS course (English Language Intensive Courses for Overseas Students) because English was required, and she completed that ELICOS course and then she went on to enrol in and study a cookery course. The representative stated that, at that time, there was a lot of strain on her mother because of the very high course fees. He said that, while the applicant was studying, the delegate made the refusal decision. He said that it was at that time, the applicant opted out of the course. He said that, otherwise, the applicant would have continued on with the course.

37. He submitted that there were ‘compassionate and compelling’ circumstances involved in this case: that the applicant was living with and being supported by her mother and her intentions were to comply with the requirements up until the point of the refusal decision. (The Tribunal notes that, at the second hearing, when the representative raised this argument again, the Tribunal informed him that whether there were ‘compassionate and compelling’ circumstances was not the test that the Tribunal needed to consider).

38. Next, the Tribunal asked the applicant whether, at the time of application on 17 August 2017, she had been undertaking full-time study. The applicant gave credible oral evidence that she had been and said that she had been studying an English course. 

39. At this point in the first hearing, the Tribunal expressed its concern that there was some confusion about the questions, such that the representative felt that he needed to interject to assist the Tribunal. Shortly thereafter, the Tribunal adjourned the hearing to be resumed on another day when a professional interpreter would be available to assist.

40. At the resumed hearing, the applicant confirmed that she had enrolled in an English course because she had been advised that it was needed so that she could undertake a Certificate III in cookery. She also confirmed that, after receiving the delegate’s refusal decision, she had withdrawn from her studies. The representative submitted that the applicant had stopped studying at this time because she had believed that the option to study had been ‘closed off to her’.

41. The Tribunal notes that much information and evidence has been submitted to the Tribunal about these matters.

42. The Tribunal asked the applicant whether, in the present year, she was enrolled in, or planning to enrol in, full-time study. The representative stated that the applicant was hopeful of having a successful outcome in the review and then she would look to enrol in a course. He said that her position was that, at present, she needed to work full time. He stated that the applicant had obtained a Bachelor degree in the travel industry in Thailand and that her ultimate ambition was to become involved with the travel industry in Tasmania. He said that this had not yet been possible for her because most employers require employees to have permanent residency. 

43. The Tribunal stated that it appeared that, even if the applicant met the time of application requirements, she would be unable to meet the time of decision requirements. For this reason, the remainder of the hearing was spent addressing the issue of the applicant’s request for the matter to be referred to the Minister for his intervention.

44. In the circumstances, the Tribunal considers that it need not make a finding about whether, at the time of application, the applicant met cl 802.214(1)(c) because the applicant’s oral evidence, given at the second hearing, that she was working full time and not studying means that she cannot meet the time of decision requirements in cl 802.221(2)(b). The Tribunal finds that cl 802.221(2)(b) is not met.

    CONCLUSION

45. At the time of decision, cl 802.221(2)(b) is not met.

46. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    Consideration of request for referral to the Minister for intervention

1. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

2. In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the Direction of the President of the Tribunal titled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s351, s417 and s501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

3. Paragraph 16.1 of the President’s Direction, referred to above, provides that ‘Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister’. The Direction also provides that a Member should set out, in their reasons for decision, the circumstances which the Member considers warrant the case being brought to the Minister’s attention.

4. At the second hearing, the Tribunal heard, from the representative, how the applicant had lived in Australia for almost five years, was living with her mother and would have nowhere to live if she was required to depart Australia and return to Thailand.

5. The applicant told the Tribunal that she wished to stay in Australia, explaining that ‘the life is much better than in Thailand’ and that it would be better for her future as well. She said that, by remaining in Australia, she was able to assist her mother (in Australia) and her grandmother (in Thailand). She said that, in Thailand, she had nowhere to stay and no job. She acknowledged that, in Australia, she had a place to stay with her mother and had work so was able to provide financial support to her grandmother in Thailand. 

6. The applicant’s mother, Ms Ransley, gave oral evidence that she was an Australian permanent resident,[3] that she was married to an Australian citizen and had lived in Australia for 13 years. She said that the applicant lived with her and her husband and that the applicant ‘helps with everything’, although when asked, she said that the applicant’s help was ‘not so much with the finances’. The Tribunal observed her wipe away tears and display emotion by crying when she told the Tribunal that she wanted her daughter to stay in Australia. In her own words, ‘if she goes back to Thailand, she has no one there’.

   [3] Corroborating documentary evidence was submitted to the Department and is on the Department’s file.

7. The representative queried whether the letters from the supporting Senators should be provided at the time that a submission is made to the Minister. The Tribunal responded by stating that any information that would be useful to the Minister should be brought to his attention. The Tribunal also noted that the Minister would not consider a request for referral until the Tribunal has made a decision.   

8. The Tribunal informed those present at the hearing that, when considering whether or not to refer a matter to the Minister, the Tribunal must have regard to the Minister’s Guidelines. As the Tribunal found the applicant and her mother to be credible, has admiration for the applicant’s commitment to helping her family as well as to her studies and career goals and has sympathy with her situation, the Tribunal also stated that, on face value, it could not see that it would not have grounds for supporting a request for the matter to be referred to the Minister.

9. However, after the hearing, the Tribunal noted a file note on the Department’s file which states:

   Applicant unlawful at date of lodgment-

   Visitor visa expired 05/08/2017 while applicant onshore. Form 47CH received 17/08/2017 after visa expiry date.

10. The Tribunal reviewed the applicant’s migration history as set out on her movement records, as detailed earlier in these reasons.

11. The Tribunal is mindful that the Minister’s Guidelines specifically state, under the heading ‘Ministerial intervention principles’, that the Minister will review a case referred to him unfavourably if the person has been an unlawful non-citizen. Mindful of this, the Tribunal has decided not to refer the matter for possible ministerial intervention under s 351 of the Act.

12. However, it remains open to the applicant to make an application for such consideration through the Department directly. The Tribunal believes that the applicant is best placed to explain her short two-week period of being an unlawful non-citizen in any submission she may make to the Minister. The applicant may also wish to update the two earlier-mentioned Senators about this matter in order to secure updated letters of support, now that a decision in this review has been made.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Justine Clarke
    Member